Missing Trust Document? No Problem Under Florida Trust Law

August 26, 2019

In an age where nearly all business is handled by electronic means, only an original will can be admitted to probate under Florida law. That is, photocopies will not suffice without some other evidence. This is not true for Trusts, however. Where evidence of a trust is required—for instance, to establish one’s authority as trustee to transact on an account owned by the trust—a photocopy of the trust instrument will suffice. Florida law further allows for judicial construction of a trust where only a portion of the trust can be located. In fact, applicable law doesn’t require the existence of a physical document at all.

The Restatement of Trusts—a legal treatise which codifies centuries of common law legal doctrine—sets forth that a written document is not necessary in order to create a trust. Axiomatically, if a trust which was previous reduced to writing cannot be located, its terms can still be established. Specifically, the Restatement provides that a trust may be created as follows:

(a) A declaration by the owner of property that he holds it as trustee for another person; or

(b) A transfer inter vivos by the owner of property to another person as trustee for the transferor or for a third person; or

(c) A transfer by will by the owner of property to another person as trustee for a third person; or

(d) An appointment by one person having a power of appointment to another person as trustee for the donee of the power or for a third person; or

(e) A promise by one person to another person whose rights thereunder are to be held in trust for a third person.

Florida law has evolved to explicitly reflect the principle that a trust may exist in the absence of a formal writing. For instance, our Trust Code does not require a written instrument in order to create a trust. Instead, there need only be (i) capacity and intent to make a trust; (ii) a definite beneficiary or charity (with some exceptions); (iii) duties for the trustee to perform; and (iv) distinct trustee(s) and beneficiary(ies). Fla. Stat. § 736.0402. The Code further permits one to establish a trust’s terms using evidence other than the trust instrument itself. Fla. Stat. § 736.0103(21). Where the existence of a trust is known but its terms are not, individuals can initiate judicial proceedings for the purpose of construing a trust’s terms. Fla. Stat. § 736.0201.

While establishing the terms and validity of a will in the absence of the original document is often a complex undertaking, the same is not typically true with trusts. Florida law does not require an original signature in order to give effect to a trust instrument. In many instances, the trust can be established and administered in the absence of any writing. Because of this, beneficiaries and trustees who believe they have rights or obligations stemming from the existence of a trust are wise to seek advice as to their rights rather than waiting for an original instrument to surface.